With early voting already under way and only a short time until the real election day (November 6 – don’t forget!), this is a good time to provide some guidance for employers seeking to keep a civil workplace between now and November 7.

(By November 8, we hope that everyone has forgotten this entire ordeal and is back to normal until next year, when the 2016 campaign begins.)

HERE’S THE NOVEMBER 7 RULE: If your candidate won, do not “spike the ball in the end zone” at work. Wait until you get home. If your candidate lost, wish the winner well, or say nothing. Mourn for the demise of our once-great nation when you get home.

DO’s

DO encourage employees to “talk politics” with people they substantially agree with, or people who are still making up their minds and are looking for guidance. Discourage political discussions among employees who have fervently-held opposing views and whose minds are made up.

DO encourage employees to keep their political discussions courteous, respectful, and focused on the issues rather than personalities or candidates’ “EEO” characteristics, such as the President’s race or Governor Romney’s religion.

DO (if appropriate for your work environment) prohibit political discussion in the presence of customers, or when employees are expected to be actually getting some work done.

DO be aware that, in a handful of states, it is unlawful for an employer to try to influence an employee’s vote. (The voting-leave chart linked in the prior “DO” includes these laws.) If you operate in one of these states, you should not overtly (with employees) endorse or oppose any candidate, referendum, or other initiative.

DO remind employees of your internet and email policies, and encourage them to be judicious and professional in sending or forwarding political emails or links.

DO feel free to break up employees’ political discussions at work if the atmosphere is becoming contentious or employees appear to be uncomfortable. DO encourage your employees to “self-police” political discussions by leaving, or warning their co-workers when the discussion appears to be heading into hostile territory.

DO feel free to ensure that political discussions do not interfere with getting the job done.

DON’Ts

DON’T have a flat ban on all political talk at work. As most employers know, the First Amendment does not apply to private workplaces, but the National Labor Relations Act could come into play if the discussions implicate “terms and conditions of employment.”

DON’T make, or allow others to make, comments about candidates that may be discriminatory or harassing based on the candidates’ or their supporters’ race, sex, national origin, religion, color, age, disability, or any other legally protected characteristic.

BE VERY, VERY CAREFULs

BE VERY, VERY CAREFUL about political discussions among employees about issues that are especially inflammatory or emotional, such as same-sex marriage, LGBT rights, reproductive rights, and affirmative action. These are legitimate topics for political discussion, but they are also sensitive and carry a high risk of creating hurt feelings or causing hostility.

BE VERY, VERY CAREFUL about sharing your company’s political views, assuming you live in the majority of states where this is legal. Be sure to preface your discussion with a statement to the effect that the decision of how to vote is the employee’s, and the employee’s alone. Then present the company view as “We wanted to share the Company’s position on [CANDIDATE OR ISSUE].” Keep the discussion objective, factual, and focused on issues, not personalities. At the end, remind employees that you are only sharing the company’s view and are not attempting to tell employees how to vote. But be aware that some employees will still view this as “pressure,” and take that into account in making the decision whether to share the company’s views at all.

CAI’s 2012 Triad Employment Law Update, scheduled for November 7 at the Koury Center in Greensboro, will provide additional information on staying compliant with state and federal laws. The conference will also provide material on several legal topics affecting employers, including ADAAA, FLSA Exemption, Immigration and Healthcare Reform. Register today at www.capital.org/triadlaw.

The E-Verify system is a federal internet-based tool that allows you to determine the eligibility of employees to work in the United States. As of yesterday, Oct 1, 2012, North Carolina companies with 500 or more employees are required by law to start implementing the federal E-Verify system to verify work authorization for all new hires. You must complete online training and sign a Memo of Understanding before you use the system.

Make sure you are familiar with your obligations under the new law. Review the different scenarios below:

You are a federal contractor or subcontractor with the FAR E-Verify clause in your contract

If your company has not yet enrolled in E-Verify, then you have 30 days from the date of contract award to enroll, and 90 days from the date you enroll with E-Verify to initiate verification queries for employees already on your staff who will be working on the contract and to begin using the system to verify newly hired employees. After this 90-day phase-in period, you will be required to initiate verification of each newly hired employee within three business days after their start date. To meet this three-day requirement, employers may initiate verification of a newly hired employee before their start date if the employee has accepted the job offer and filled out the Form I-9.

Please note that pre-screening of job applicants is not allowed; the system may be used for new hires only after the employee has been offered the job and has accepted. Please also remember that you must continue to use E-Verify for the life of the contract for all your new hires, whether or not they are employees assigned to the contract. For more information on the FAR E-Verify clause, go to http://j.mp/ev-fa.

You are not a federal contractor with the FAR clause but want to voluntarily use E-Verify

You must use the federal E-Verify system for all new hires for each hiring site that you choose to use E-Verify. The hiring site is typically where the employee completes the I-9 form. (Note: It may be different from where the form is verified – the verification site.)

However, you can exclude hiring sites if not required by state or federal law to use E-Verify. For more information, go to http://j.mp/11-ev.

You are a North Carolina employer

North Carolina employers will be required to use the federal E-Verify system based on the following schedule: [Note: North Carolina municipalities and counties were required to use it on October 1, 2011.]

October 1, 2012 for employers with 500 or more employees (and governmental agencies);

January 1, 2013 for employers with 100 to 499 employees; and

July 1, 2013 for employers with 25 to 99 employees.

For North Carolina, covered employers are only required to use E-Verify for all employees who work in North Carolina. If you have employees who work in other states but they complete their I-9 paperwork at the North Carolina hiring site, they must be run through E-Verify. If you are hiring sales reps or other employees who will not work in North Carolina, you must consider three things in determining whether you will be required to use E-Verify:

Is their hiring site a site in North Carolina for which you are using E-Verify? If yes, they must be run through E-Verify.

If not, does the state(s) where they are working require E-Verify and do you meet the criteria? If so, they must be run through E-Verify.

If not, is their hiring site a location for which you are already using E-Verify? If so, they must be run through E-Verify.

At a future date, the North Carolina Department of Labor will issue information as a result of hearings on E-Verify to clarify the North Carolina E-Verify requirement. For more information, go to http://j.mp/ev-nc.

None of the above conditions apply to your organization

If none of the above applies to you, check the laws for states where you do business to determine if you are required by state law to use the federal E-Verify system.

One of the more challenging compliance issues for employers is managing family and medical leave and other leaves of absence, and knowing when to safely terminate employment. Kimberly Korando with Smith Anderson law firm guided CAI members who participated in the recent members-only “Ask the Experts” sessions on the interplay of company leave policies, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act of 1990 (ADA), the ADA Amendments Act of 2008 (ADAA), and North Carolina’s Retaliatory Employment Discrimination Act (REDA).

Following are some of the practical takeaways from this session:

1. REDA and ADAA have different requirements.

North Carolina’s REDA law allows employers to have a consistent termination policy that applies across the board regarding workers’ compensation leave. The ADAA requires a case-by-case evaluation when an employee needs extended leave to determine if a reasonable accommodation can be made (consistency is not applicable).

2. Review policy language on FMLA eligibility.

Be sure that your employee-eligibility statement for FMLA includes all of these requirements: employed for at least 12 months; worked 1,250 hours over the previous 12 months; and works at a worksite with at least 50 employees within 75 miles. According to Ms. Korando, if the policy leaves out any of the criteria, you may be required by the courts to grant FMLA even if the employee is not eligible.

3. Consider the different requirements of FMLA and ADA on return to work.

FMLA requires an employer to return the employee to the same or an equivalent position. ADA requires the employee’s return to the original position. This is extremely important to remember when the employee is covered by both the FMLA and ADA, and the employee returns before the end of the FMLA (unless he or she is unable to perform the original position with or without reasonable accommodation).

4. Document the interactive process.

Court cases provide employers with tips on the court’s expectations of how they should handle the ADA process. One “nugget” Ms. Korando gleaned was that the courts expect employers to document the interactive process and what was considered and discussed with the employee regarding reasonable accommodation and/or undue hardship.

5. Check third party vendor letters.

If you have agreements with vendors that stipulate automatic termination of temporary employees if they are unable to work, include the statement unless other action is required by applicable federal or state law. There are joint employment responsibilities under FMLA and ADA.

6. Indefinite leave is not a reasonable accommodation in North Carolina.The 4th circuit court has said that it is unreasonable to expect an employer to hold a job or consider other jobs or extended leave when the employee’s doctor states the employee will be on leave indefinitely. The employee can be terminated if this is the case (after completion of eligible FMLA leave).

7. End of leave communications.

Communicate with the employee by documenting in writing a summary of the leave dates, type, etc. Include the last day worked, the dates of FMLA and the date job reinstatement responsibilities ended, extended leave or other reasonable accommodations made, and the date of termination.

If you have questions about FMLA or other leave rights, please call a member of CAI’s Advice and Counsel team at 919-878-9222 or 336-668-7746.

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A non-profit employers' association with offices in Raleigh and Greensboro, CAI serves the greater Research Triangle, Piedmont Triad and 65 central and eastern counties of North Carolina. We help more than 1,000 member companies maximize employee engagement and minimize employer liability ... more